State of U.P. Vs. Roop Lal Sharma and others
Email(Arising out of S.L.P.(C) No.3535 of 1985)
(From the Judgment and Order Dated 28-09-1984 of the Allahabad High Court in C.M.W.P.No.5404 of 1980)
(Arising out of S.L.P.(C) No.3535 of 1985)
(From the Judgment and Order Dated 28-09-1984 of the Allahabad High Court in C.M.W.P.No.5404 of 1980)
Mr. Jitendras Sharma, Senior Advocates, Ms. Gunwat Dara, P.Gaur , Advocates with him for the Respondents.
U.P. Public Premises (Eviction of Unauthorised Occupants Act, 1976:
Section 2(g), 2(p) – Public Premises – Unauthorised occupant – Held that on evidence the premises were public premises and respondent, a retired government servant was unauthorised occupant – No question of res judicata – Appeal allowed and respondent directed to vacate the premises with in three months.
Rea judicata
See under Rent Law.
“Public premises” is defined in Section 2(e) of the Act as meaning any premises “belonging to or taken on lease or requisitioned by or on behalf of the State Government…” The first respondent never disputed that the building belongs to the Government and all he has said was that it belongs to the Government estate. It does not matter. The definition of public premises is so wide as to hedge in all such buildings whether it actually belongs to government as such or only to a Government department or even a building belonging to a private individual if Government have requisitioned it or some person on behalf of the Government has requisitioned it. Hence there is no escape from concluding that the building in question is public premises. (Para 6)
“Unauthorised occupation” is defined in Section 2(g). The definition comprises within its contours occupation of the public premises by any person without authority for such occupation, and also the continuance in occupation of such premises by any person after the authority (under which or the capacity in which he was allowed to hold or occupy the premises) has expired or has been determined for any reason whatsoever.” Thus continuance in occupation after the determination of such authority would also make the occupation unauthorised for the purpose of the said Act. (para 7)
In the above view, there is no question of any bar of res judicata on the strength of the earlier order dated 22.3.1978 particularly because there is a finding in that order that the building belongs to Government Estate. From any view of the matter the building in question is public premises. It is unfortunate that first respondent was allowed to continue as an “unauthorised occupant” in Government quarters for nearly a decade now after he ceased to be a Government servant, when lot of other Government servants in service are waiting in the queue for accommodation. (Para 8)
1. Leave granted.
2. This appeal is by the State of U.P. as they failed to get an order of eviction against first respondent (Rup Lal Sharma – a retired Government servant) from a Government quarter as per the provisions of U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (for short ‘the Act’).
3. Admitted facts are: Rup Lal Sharma was a Government servant. Quarter No.34 situated at Mohalla Faqirganj, Old Katra, Allahabad was allotted to the first respondent on payment of rent by the officer incharge of Government Estates, Allahabad. When first respondent retired from Government service the State moved the prescribed authority under the Act for an order of eviction under Section 5 of the Act. On 22.3.1978, the prescribed authority passed an order of eviction dismissing the application by observing that “it is not possible to hold that the house in question is public premises or that the opposite party is an unauthorised occupant of it.” After the said order, the appellant sent notice to the first respondent determining the lease, and on the expiry of the period specified in that notice appellant moved a fresh application under Section 4 of the Act before the prescribed authority. Even on this time the application was dismissed on the principles of res judicata in that the earlier order dated 22.3.1978 would operate as a bar against the appellant from seeking eviction of the first respondent under the provisions of the Act. Appellant thereupon went in appeal before the District Judge who was the appellate authority under the Act, but the appeal was dismissed. A writ petition was filed before the High Court of Allahabad challenging the said orders, but the said writ petition was also dismissed by the impugned judgment.
4. Even assuming that the findings made in the earlier order dated 22.3.1978 would preclude the appellant in subsequent proceedings from reconvassing against such findings on the principles of res judicata we may observe that the question raised in the present proceedings has no bearing on such findings. As per the order of 22.3.1978 the prescribed authority found that the building belongs to the Government Estate, and there is no evidence that the tenancy was terminated before filing the application. On the above two premises the prescribed authority concluded thus: “Hence the opposite party cannot be deemed to be an unauthorised occupant of this premises as defined under the Act.”
5. In the present proceedings there is no dispute that notice was subsequently served on the first respondent determining the lease. If so, can the respondent be treated as an unauthorised occupant even if it is true that the building belongs to a Government Estate?
6. “Public premises” is defined in Section 2(e) of the Act as meaning any premises “belonging to or taken on lease or requisitioned by or on behalf of the State Government…” The first respondent never disputed that the building belongs to the Government and all he has said was that it belongs to the Government estate. It does not matter. The definition of public premises is so wide as to hedge in all such buildings whether it actually belongs to government as such or only to a Government department or even a building belonging to a private individual if Government have requisitioned it or some person on behalf of the Government has requisitioned it. Hence there is no escape from concluding that the building in question is public premises.
7. “Unauthorised occupation” is defined in Section 2(g). The definition comprises within its contours occupation of the public premises by any person without authority for such occupation, and also the continuance in occupation of such premises by any person after the authority (under which or the capacity in which he was allowed to hold or occupy the premises) has expired or has been determined for any reason whatsoever.” Thus continuance in occupation after the determination of such authority would also make the occupation unauthorised for the purpose of the said Act.
8. In the above view, there is no question of any bar of res judicata on the strength of the earlier order dated 22.3.1978 particularly because there is a finding in that order that the building belongs to Government Estate. From any view of the matter the building in question is public premises. It is unfortunate that first respondent was allowed to continue as an “unauthorised occupant” in Government quarters for nearly a decade now after he ceased to be a Government servant, when lot of other Government servants in service are waiting in the queue for accommodation.
9. We, therefore, allow this appeal and upset the impugned judgment of the High Court. We allow the application of the appellant and grant an order of eviction. First respondent is directed to vacate the building in question on or before the expiry of three months from today. However, we direct the parties to bear their respective costs.
